Mike Weinstock, MD and Genevieve Messick, MD

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Discuss legal and patient safety issues surrounding patients who want to leave “against medical advice”.

 PEARLS:
  • Patients who leave against medical advice are disproportionately a sicker population than those who stay to complete evaluation and treatment.

  • Documentation of the patient’s decision-making capacity as well as documentation of a discussion of the risks of leaving and the patient’s  expressed understanding of these risks are equally, and possibly more important than the patient’s signature on the AMA form.  

  • Offer treatment to patients leaving AMA and ask them to return if they change their mind or get worse.  

  • Providers face a significant challenge when patients disagree with our medical recommendations.  These situations are high risk for patient complaints, adverse medical outcomes and often require the difficult discussion and signing of the “Against Medical Advice (AMA)” form.  

  • The AMA discussion should not stem from the provider’s desire to be right, but rather the desire to help the patient.

A CASE:

A 68 yo man presents to the Urgent Care (UC) and in the waiting room is agitated.  He is brought back to an examination room and reports that he is having a panic attack.  He has a history of similar attacks in the past.  To help with his anxiety, the patient has recently resumed alcohol consumption and has been drinking a bottle of vodka a day for the past 5 weeks. The patient has a cardiac history and with a stent placed 10 years prior.   He had a negative stress test within the past 3 months.

The patient is insistent that he is having anxiety and needs help for these symptoms.  When pressed for more history, the patient describes that over the past 5 weeks he feels short-of-breath with numbness/stiffness in both arms when he walks, which he again describes as anxiety.  These symptoms are worse with activity, last about 45 minutes and improve with rest.  The patient has no symptoms at rest.

The provider suggests that she is concerned that these symptoms are not anxiety, but rather are angina or otherwise related to his heart.  The patient’s wife immediately interjects saying “absolutely cannot be because it goes down both arms.  We googled the condition and it is not his heart.”

The provider emphasizes that it is possible to have atypical presentations of cardiac disease.  She performs a physical exam that is unremarkable and obtains an EKG that demonstrates sinus rhythm with lateral and anterior ST depression.  There are no prior EKGs available for comparison.

The provider again discusses her concerns about cardiac ischemia and recommends transfer to the Emergency Department (ED) and the patient flatly refuses.  He accuses her of trying to make more money by suggesting the transfer.

What are the different ways to approach this situation?

  • A paternalistic approach that continues to reiterate the doctor’s recommendations.

  • Determine the patient’s capacity and allow him to leave after signing out AMA.

  • Continue to reach out to the patient: try to understand their resistance and address their concerns.

Against Medical Advice (AMA)

  • The phrase “against medical advice” arose from a decision written by Justice Benjamin Cardozo (Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914)).

  • Mary Schloendorff presented to New York Hospital with abdominal symptoms.  She consented to be examined “under ether”.  During the examination, the surgeon discovered a fibroid and removed it without her permission.    The patient developed post-operative sepsis, gangrene of her fingers, amputation and chronic pain.

  • Justice Cardozo’s decision read in part, “Every human being of adult years and sound mind has the right to determine what shall be done with his own body and the surgeon who performs an operation without his patient’s consent, commits an assault for which he is liable in damages.  This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.”

Decision-Making Capacity

  • Before allowing a patient to leave against our advice, we are charged with determining capacity.

  • Competence is a legal term that we should not be using because it is not reflective of the medical evaluation and determination of capacity.

  • Capacity is determined by a medical provider requires several different elements:

    • The patient must be able to express their choice.

    • They must be able to understand the information presented to them.

    • They must be able to appreciate the significance of the information.

    • They must be able to express the ability to reason in the context of the information given to them.

  • Capacity does not specify whether a patient is inebriated, has mental problems or dementia.  Capacity is determined by whether the patient understands the implications of the decision that they are making.

Levy F et al, The importance of a proper against-medical-advice(AMA) discharge: How signing out AMA may create significant liability protection for providers. J Emerg Med 2012;43(3):516-520. [PMID 21715123]

Clark MA et al. Ethics seminars: A best practice approach to navigating the against-medical-advice discharge. Acad Emerg Med 2014;21:1050-1057. [Free open access link]

  • If you have determined that the patient has capacity and they are going to leave against your advice, It is important to have the patient sign the AMA form.

  • However, what you document in the chart is also very important.  If a patient leaves AMA and they are hypoxemic, confused, or have otherwise demonstrated that they do not have the capacity to decide to leave against medical advice, their signature on the AMA form does not provide provide you any protection.

  • We can mitigate our own risk by explaining clearly the risks to the patient of leaving and then clearly documenting that we explained them to the patient, and that the patient understood the risks.

Hwang SW, et al. What happens to patients who leave hospital against medical advice? CMAJ 2003;168:417–20. [Free open access link]

  • AMA patients tend to be sicker than other patients.  These patients are 7 times more likely than other patients to return to the ED and be admitted.

  • The legal risk of AMA patients is also much higher than other patients.  Typically, a lawsuit  occurs in 1 in 20,000 patient ED visits.  Among AMA patients, this number increases to 1 in 300 patient visits.

  • These are all patients that we want to do more with, but the patients have refused to have anything done.

Schaefer GR, et al. Financial responsibility of hospitalized patients who left against medical advice: medical urban legend? J Gen Intern Med 2012;27:825–30. [Free open access link]

  • Looked at 46,000 patients admitted over a 10 year period of time.  526 of those patients (1.1%) had previously left AMA.

  • 69% of residents and 44% of attendings surveyed believed that leaving AMA would result in non-payment by insurance companies.

  • Of the 526 patients, payment was refused in 4.1% of patients, all because of administrative errors.

  • No cases of payment refusal were because the patient had previously left against medical advice.

  • The best approach is to stay professional.  Do not take it personally or get mad at the patient for leaving.  Express that you are very sorry that they have decided to leave against medical advice and that you are concerned about them.  Ask them to return if they change their mind.

  • Patients who leave AMA require additional documentation.  

    • Document that they have capacity.  Not just AAO.  Report the patient knows the day, month and year, but also that the patient repeated back to you the risks of leaving.

    • Document the risks as discussed and that the patient understands.

    • Document your recommendation that the patient return, particularly if their symptoms progress or if anything changes.  Also document who is part of that discussion.  A family member, a nurse, etc.

Should we treat patients who leave AMA?

  • Yes! Do as much as you can for the patient even if it is not the ideal treatment or care plan.

  • Your legal risk for not treating the patient is much higher than letting them go AMA with suboptimal treatment (i.e PO antibiotics when admission for IV antibiotics is your recommendation).

CASE CONCLUSION:

The provider makes a final attempt at discussion with the patient and is clear that she believes this patient’s symptoms are coming from a dangerous problem with his heart.  After several previous unsuccessful attempts, the patient finally agrees to be transported to the hospital.  His EKG is faxed to the ED and the patient is transported to the Emergency Department.

3 weeks later the patient returns to the UC and greets the provider with a hug.  On arrival to the ED, he had been found to have such bad vessel disease that he had been transferred to a 3rd facility for bypass surgery.  He was told by the surgeon that his life had been saved because of the interventions and decisions made at the Urgent Care.